Gonzales v. Raich: Another state's rights retreat
By Robert S. Sargent, Jr.
web posted June 13, 2005
Last Monday, the Supreme Court ruled (Gonzales v. Raich) that
the federal Controlled Substances Act (CSA) was constitutional
and "Congress' Commerce Clause authority includes the power
to prohibit the local cultivation and use of marijuana in
compliance with California law." This law, the Compassionate
Use Act, allows Californians to use marijuana for medicinal
purposes. The federal CSA prevents all Americans from
"possessing, obtaining, or manufacturing cannabis for their
personal medical use."
The issue isn't whether Congress can regulate interstate
commerce, the issue here is can Congress regulate the intrastate
growing and using of marijuana? In a Reuters article it said,
"Angel Raich has as inoperable brain tumor and other medical
problems while Diane Monson suffers from severe back pain.
Their doctors recommended marijuana for their pain, Monson
cultivates her own marijuana while two of Raich's caregivers
grow the marijuana and provide it to her free of charge. In 2002,
Drug Enforcement Administration agents destroyed six cannabis
plants seized from Monson's home." Raich and Monson argued
that the California law didn't violate the Commerce Clause of the
Constitution.
Unfortunately for Raich and Monson, Justice Stevens, writing for
the 6-3 majority, wrote: "Congress' power to regulate purely
local activities that are part of an economic ‘class of activities'
that have a substantial effect on interstate commerce is firmly
established… [T]he regulation is squarely within Congress'
commerce power because production of the commodity meant
for home consumption…has a substantial effect on supply and
demand in the national market for that commodity. In assessing
the scope of Congress' Commerce Clause authority, the Court
need not determine whether respondents' activities taken in the
aggregate, substantially affect interstate commerce in fact, but
only whether a ‘rational basis' exists for so concluding." Stevens
goes on, "Prohibiting the intrastate possession or manufacture of
an article of commerce is a rational means of regulating
commerce in that produce." It seems if Congress is "rational" it
can extend the arm of the Commerce Clause to any intrastate
activity.
Stevens quotes a 1942 case, Wickard v. Filburn, a time when
the Supreme Court was allowing FDR's Congress the power to
write any law in the name of the Commerce Clause, "…even if
appellee's activity be local and though it may not be regarded as
commerce, it may still, whatever its nature, be reached by
Congress if it exerts a substantial economic effect on interstate
commerce." What is "substantial," or "rational," of course, will be
determined by our judges.
Wading in in a concurring opinion, Justice Scalia wrote, "Where
necessary to make a regulation of interstate commerce effective,
Congress may regulate even those intrastate activities that do not
themselves substantially affect interstate commerce." Where does
Congress get that power? "Congress's regulatory authority over
intrastate activities that are not themselves part of interstate
commerce derives from the Necessary and Proper Clause."
Well, heck, if it's not "rational," it's for darn sure necessary and
proper. (Question: Is Scalia smoking the very cannabis that
Raich and Monson may now be denied?)
Justice O'Connor, in her dissent, pointed out that "…the
Government has made no showing in fact that the possession and
use of homegrown marijuana for medical purposes…has a
substantial effect on interstate commerce." She goes on,
"Congress cannot use its authority under the (Necessary and
Proper) Clause to contravene the principle of state sovereignty
embodied in the Tenth Amendment." Are you listening Scalia?
But Clarence Thomas, in his separate dissent, put it best:
"Respondents Diane Monson and Angel Raich use marijuana
that has never been bought or sold, that has never crossed state
lines, and that has had no demonstrable effect on the national
market for marijuana. If Congress can regulate this under the
Commerce Clause, then it can regulate virtually anything – and
the Federal Government is no longer one of limited and
enumerated powers." Thomas ends his excellent dissent with,
"Our Federalist system, properly understood, allows California
and a growing number of other States to decide for themselves
how to safeguard the health and welfare of their citizens."
Unfortunately and what is so disturbing to constitutional
conservatives is that in the recent Granholm v. Heald, which held
state laws that allowed in-state wine shipments, but not out-of-
state, in violation of the Constitution, and in this, Gonzales v.
Raich, which holds that the Commerce Clause allows Congress
to reach into what should be the state's domain, we have seen
the defection of Justices Kennedy and Scalia from their previous
commitment to the Tenth Amendment and state's rights.
Remember United States v. Lopez when the Court struck down
the federal Gun Free School Zones Act? We all thought there
would be a new revolution in Commerce Clause limitation and a
new awareness of the Tenth Amendment. Fuggedaboutit.
Robert S. Sargent, Jr. is a senior writer with Enter Stage Right
and can be reached at rssjr@citcom.net.
Enter Stage Right -- http://www.enterstageright.com